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2011 OK 68 



IN THE SUPREME COURT OF THE STATE OF OKLAHOMA 



OKLAHOMA PUBLIC EMPLOYEES ASSOCIATION 
Plaintiff/Appellant, 



v. 



STATE OF OKLAHOMA ex rel OKLAHOMA 
OFFICE OF PERSONNEL MANAGEMENT, 

Defendant/Appellee 

OKLAHOMA PUBLIC EMPLOYEES ASSOCIATION 



v. 



STATE OF OKLAHOMA ex rel. 
OKLAHOMA OFFICE OF STATE FINANCE, 



Defendant/Appellee. 



and 



No. 108,839 



For Official Publication 

& f & m 
4UPREME COURT 

'STATE OF OKLAHOMA 

M 2 b mii 

MQBML S. RICHIE 
CLERK 



STATE OF OKLAHOMA PUBLIC EMPLOYEES 
ASSOCIATION, 

Plaintiff Appellee and, 

STATE OF OKLAHOMA ex rel, OKLAHOMA 
OFFICE OF PERSONNEL MANAGEMENT, 



Defendant/Appellee and, 



OKLAHOMA PUBLIC EMPLOYEES ASSOCIATION, 



Plaintiff7Appellee and, 

STATE OF OKLAHOMA ex re/.OKLAHOMA 
OFFICE OF STATE FINANCE, 

Defendant/Appellee, 



v. 



WORLD PUBLISHING COMPANY and 
TOE OKLAHOMA PUBLISHING COMPANY, 

Intervenors/Appellants. 



No. 108,841 



KAUGER, J., dissenting, with whom Taylor, CJ., joins: 

fl This is a matter of statutory construction. The statute involved is the 
human resources statute within the Open Records Act. Although the Legislature 
has amended 51 O.S. supp. 2005 §24A.7 three times since its inception in 1985, it 
has never chosen to include the date of birth. 1 If the Legislature desires to do so, it 
certainly can. 2 



'Title 51 O.S. Supp. 2005 §24A.7D provides: 

D. Public bodies shall keep confidential the home address, telephone numbers and social security numbers of 
any person employed or formerly employed by the public body. 

The statute was enacted in 1985, and amended in 1990, 1994, and most recently in 2005. 

2 The legislature included date of birth in the identity theft statute, 51 O.S. Supp. 2007 §1533. 1A provides: 

A. It is unlawful for any person to willfully and with fraudulent intent obtain the name, address, social security 
number, date of birth, place of business or employment, debit, credit or account numbers, driver license number, 
or any other personal identifying information of another person, living or dead, with intent to use, sell, or allow 
any other person to use or sell such personal identifying information to obtain or attempt to obtain money, credit, 
goods, property, or service in the name of the other person without the consent of that person. 



2 



2011 OK 68 ^ 
IN THE SUPREME COURT OF THE STATE OF OKLAHOMA 



OKLAHOMA PUBLIC EMPLOYEES 
ASSOCIATION, 

Plaintiff/ Appellant, 



v. 



STATE OF OKLAHOMA ex rel 
OKLAHOMA OFFICE OF PERSONNEL 
MANAGEMENT, 

Defendant/ Appellee. 

OKLAHOMA PUBLIC EMPLOYEES 
ASSOCIATION, 



Plaintiff/ Appellant, 



v. 



STATE OF OKLAHOMA ex rel 
OKLAHOMA OFFICE OF STATE FINANCE, 

Defendant/ Appellee. 



IIQMAEL s. i 



No. 108,839 

FOR OFFICIAL 
PUBLICATION 



and 



OKLAHOMA PUBLIC EMPLOYEES 
ASSOCIATION, 



Plaintiff/ Appellee and, 



STATE OF OKLAHOMA ex rel 
OKLAHOMA OFFICE OF PERSONNEL 
MANAGEMENT, 

Defendant/ Appellee and, 

OKLAHOMA PUBLIC EMPLOYEES 
ASSOCIATION, 

Plaintiff/ Appellee and, 

STATE OF OKLAHOMA ex rel. 
OKLAHOMA OFFICE OF STATE FINANCE, 

Defendant/ Appellee, 



v. 



No. 108,841 



WORLD PUBLISHING COMPANY and 
THE OKLAHOMA PUBLISHING COMPANY, 

Intervenors/Appellants. 

APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY 

f) The Oklahoma Publishing Company (Oklahoman) and World Publishing 
Company (Tulsa World) (collectively, publishers), filed open records requests 
with the Office of Personnel Management (OPM) and the Office of State Finance 
(OSF). Both the Oklahoman and Tulsa World sought release of birth dates of all 
state employees. In addition, the Tulsa World requested employee identification 
numbers. The Oklahoma Public Employees Association (OPEA) filed two suits 
against OPM and OSF, respectfully. Both petitions requested declaratory 
judgment and injunctive relief barring the release of employees' birth dates. The 
second suit also sought to bar employee identification numbers from disclosure. 
The district court consolidated the causes. All parties filed motions for summary 
judgment. Relying on an opinion of the Oklahoma Attorney General (AG), the 
trial court sustained OPEA's and OPM's motions. It ordered that: state agencies 



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be given sixty (60) days notice to report their decisions on whether disclosure of 
date of birth requests would be a clearly unwarranted invasion of personal privacy 
pursuant to 5 1 O.S. Supp. 2005 §24A.7(A)(2); public access could be denied to 
employee identification numbers; and legislative staff records were exempt from 
disclosure under the Oklahoma Open Records Act (Open Records Act/Act), 51 
O.S. 2001 §24A.l etseq. Upon a de novo review, we determine: 1) 52 O.S. Supp. 
2005 §24A.7(A)(2) contains a non-exclusive list of examples of information, 
release of which may amount to a clearly unwarranted invasion of State 
employees' personal privacy; 2) where a claim is made that disclosure under 52 
O.S. Supp. 2005 §24A.7(A)(2) would constitute a clearly unwarranted invasion of 
personal privacy, application of a case-by-case balancing test is utilized to 
determine whether personal information is subject to release; and 3) when the 
balancing test is applied to the facts presented, where significant privacy interests 
are at stake while the public's interest either in employee birth dates or employee 
identification numbers is minimal, release of birth dates and employee 
identification numbers of State employees "would constitute a clearly unwarranted 
invasion of personal privacy" under 52 O.S. Supp. 2005 §24A.7(A)(2). 



AFFIRMED. 



Kevin R. Donelson, 
Carole L. Houghton 
FELLERS, SNIDER, BLANKENSHIP, 
BAILEY & TIPPENS, P.C. 
Oklahoma City, Oklahoma 

Stephen J. Krise, 

Oklahoma Office of Attorney General 
Oklahoma City, Oklahoma 

Michael Minnis 
Doerner, Saunders, Daniel & 
Anderson, L.L.P. 
Oklahoma City, OK 
and 

S.Douglas Dodd 
Tulsa, Oklahoma 



For Oklahoma Public Employees 
Association, 



For State ex ret. Oklahoma Office 
of Personnel Management and 
Oklahoma Office of State Finance, 

For the Oklahoma Publishing 
Company d/b/a The Oklahoman, 



3 



J. Schadd Titus 
Titus Hillis Reynolds Love 
Dickman 8c McCaimon 
Tulsa, Oklahoma 

S. Douglas Dodd 
Doerner, Saunders, Daniel & 
Anderson, L.L.P. 
Tulsa, Oklahoma 



Gary J. James 

Gary J. James & Associates, P.C. 
Oklahoma City, Oklahoma 

WellonB. Poe, 
Joseph A. Claro 

Oklahoma Department of Public Safety 
Oklahoma City, Oklahoma 

Thomas E. Prince 
Prince Law Office, P.C. 
Edmond, Oklahoma 

Robert D. Nelon 
Jon Epstein 

Hall, Estill, Hardwick, Gable, 
Golden and Nelson 
Oklahoma City, Oklahoma 



For World Publishing Company 
d/b/a Tulsa World, 



For Amid Curiae Griffin Television 
OKC, LLC, Griffin Television 
Tulsa, LLC, Oklahoma Press 
Association, Reporters Committee 
For Freedom of the Press, and 
FOI Oklahoma, 

For Oklahoma State Troopers 
Association, 

For Oklahoma Department of 
Public Safety, 



For Amicus Curiae, 
CompSource Oklahoma, 



For Amid Curiae Local TV, LLC 
d/b/a KFOR-TV (Channel 4) 
Oklahoma City, Ohio/Oklahoma 
Hearst Television, Inc. d/b/a 
KOCO-TV (Channel 5) 
Oklahoma City; Sinclair Broadcast 
Group, Inc. d/b/a KOKH-TV 
(Channel 25) Oklahoma City, 
Scripps Media, Inc. d/b/a KJRH-TV 
(Channel 2) Tulsa, KTUL, LLC 
d/b/a KTUL-TV (Channel 8) 
Tulsa, Oklahoma Association 



4 



of Broadcasters, Investigative 
Reporters and Editors, Inc., 
Radio Television Digital News 
Association, 

Nancy Pellow Pro Se. 

Oklahoma City, Oklahoma 

PER CURIUM: 

HI Although the above styled and numbered causes were consolidated in 
the trial court, they were appealed under separate numbers. On October 26, 2010, 
an order issued in case No. 108,841 making the causes companion cases for 
purposes of the appeal and requiring that separate records be filed. Today, we 
withdraw our order of October 26 th and consolidate the matters for resolution by a 
single opinion. 1 

f2 One first impression issue is common to both causes: whether public 
employees' dates of birth are open records, subject to public disclosure, under the 
Open Records Act The second first impression issue, raised only in cause No. 
108,841, is whether employee identification numbers are also public records 
which may be released. Both questions require us to consider whether the 



Rule 1 .27(d), Supreme Court Rules, 12 O.S. Supp. 2008 providing in pertinent part: 

". . . The appellate court has the discretion sua sponte, or upon motion of a party, to consider any appeals 
including one or more appeals governed by Rule 1.36 as companion or consolidated appeals." [Emphasis in 
original.] 

5 



information release would be a "clearly unwarranted invasion" of Oklahoma's 
public service, state employees' personal privacy under 51 O.S. Supp. 2005 
§24A.7(A)(2). 2 Because the issues presented are questions of law, our review is 
de novo 3 

%3 We determine that the legislative language utilized in 51 O.S. Supp. 2005 
§24A.7(A)(2) indicates the Legislature intended to provide a non-exclusive list of 
examples of information, release of which may amount to a clearly unwarranted 
invasion of State employees' personal privacy; and, that where a claim is made 
that disclosure would constitute a clearly unwarranted invasion of personal 
privacy within the meaning of the statute, application of a case-by-case balancing 
test is utilized to determine whether personal information is subject to release. 
Here, the information requested could result in cases of identity theft and 



2 Title 51 O.S. Supp. 2005 §24A.7 providing in pertinent part: 
"A. A public body may keep personnel records confidential: 

... 2. Where disclosure would' constitute a clearly unwarranted invasion of personal privacy such as 
employee evaluations, payroll deductions, employment applications submitted by persons not hired by the 
public body, and transcripts from institutions of higher education maintained in the personnel files of 
certified public school employees; provided, however, that nothing in this subsection shall be construed to 
exempt from disclosure the degree obtained and the curriculum on the transcripts of certified public school 
employees. . . . 

D. Public bodies shall keep confidential the home address, telephone numbers and social security numbers 
of any person employed or formerly employed by the public body." 

3 White v. Lim, 2009 OK 79, fh.5, 224 P.3d 679; Welch v. Crow, 2009 OK 20, 1fl0 3 2 06 P.3d 559; Stump v. 
Cheek, 2007 OK 97, f 9, 1 79 P.3d 606; Citizens Against Taxpayer Abuse , Inc. v. City of Oklahoma City, 2003 OK 
65, f 6, 73 P.3d 87 1 . See also, Dam Tree, LLC v. Meek, note 36, infra; Graham v. Alabama State Employees Ass'n, 
see note 57, infra. 



6 



compromise of governmental computer systems yet bring little, if any, information 
to public attention which would enlighten Oklahoma citizens as to how their 
government runs, performs, or spends their tax dollars. Therefore, we determine 
that when the balancing test is applied to the facts presented, release of birth dates 
and employee identification numbers of State employees "would constitute a 
clearly unwarranted invasion of personal privacy" under 52 O.S. Supp. 2005 
§24A.7(A)(2). 4 Our decision is supported by the reasoning of: the United States 
Supreme Court and other federal courts considering virtually identical language 
found in the Federal Freedom of Information Act (FOIA); the overwhelming 
majority of state courts construing language similar to that found in Oklahoma's 
statute; and the Attorney General's persuasive opinion. 

RELEVANT FACTS AND PROCEDURAL BACKGROUND 
f 4 In response to a request by Senator Debbe Leftwich, the AG issued an 
opinion on December 8, 2009. The opinion provides that: 1) a public body has 
discretion to determine that disclosing a personnel record indicating the date of 
birth of the public employee is an unwarranted invasion of the employee's 

4 Our decision today does not create a privacy interest in violation of 5 1 O.S. 200 1 §24A.2 providing that 
the "Oklahoma Open Records Act shall not create, directly or indirectly, any rights of privacy or any remedies for 
violation of any rights of privacy; nor shall the Oklahoma Open Records Act, except as specifically set forth in the 
Oklahoma Open Records Act, establish any procedures for protecting any person from release of information 
contained in public records." We merely apply the exception, provided by the Oklahoma Legislature providing for 
refusing disclosure where a release would constitute a "clearly unwarranted invasion of personal privacy" pursuant to 
51 O.S. Supp. 2005 §24A.7(A)(2), see note 2, supra. 

7 



personal privacy under the Open Records Act, 5 1 O.S. Supp. 2005 §24A.7(A)(2); 

2) in making the determination, the public body may weigh the employee's interest 
in non-disclosure against the public's interest in having access to the record; and 

3) where the employee's interest in non-disclosure is dominant, birth dates should 
be kept confidential while releasing the balance of the requested personnel record. 5 

P This cause arises out of two requests to obtain public information under 
the Open Records Act On February 19, 2010, the Oklahoman submitted a request 
to the OPM specifically seeking disclosure of the names and corresponding birth 



5 A.G. Opin. 09-33. Although not relevant to the cause presented, the opinion also provides that: 1) a vital 
statistics record, such as a birth certificate, is confidential and may not be disclosed except in specific circumstances 
as provided by the Public Health Code but that these provisions do not make confidential the birth date of an 
employee of a public body that is contained in any record that is not a vital statistics record; 2) the Driver's Privacy 
Protection Act, 18 U.S.C. §§2721-2725, does not make the birth date of an employee of a public body confidential; 
and 3) a public body make keep confidential a record indicating an employee's name placed on administrative leave 
with pay if, under the body's personnel policies, the action constitutes neither a final or disciplinary action, nor a 
final action resulting in loss of pay, suspension, demotion of position, or termination pursuant to 5 1 O.S. Supp. 
§24A.7(B). The opinion also indicated that an agency could, but was not required to, give notice to employees 
allowing them to assert a privacy interest in the release of birth dates and employee identification numbers. 
CompSource contends that employees have no right to notice and an opportunity to object to a document's 
disclosure. This issue was considered in Citvof Lawton v. Moore, 1993 OK 168, 868 P.2d 609 holding that the 
Legislature had superseded by statute an earlier decision in Tulsa Tribune Co. v. OJdahoma Horse Racing Cummin, 
1986 OK 24, 735 P.2d 548. Under the version of the Open Records Act considered in Tulsa Tribune, we interpreted 
the Act, as then cast, to require custodians of public records to give notice and the opportunity to be heard to any 
person whose interests would be affected by disclosure of public records. InMoore, we acknowledged the change m 
statutory language following the decision in Tulsa Tribune providing that "public bodies do not need to follow any 
procedures for providing access to public records except those specifically required by the Oklahoma Open Records 
Act" Title 51 O.S. 2001 §24A.2. In consideration of this statutory change, still in effect today, we held that the 
Open Records Act did not grant public employees a right to notice and hearing, or any other procedural protection. 
Conversely, as Compsource recognizes, the public body must make the decision on disclosure. Just as the Open 
Records Act does not grant public employees procedural protections, it does not prohibit an agency from utilizing 
tools in its attempt to discern whether certain personal information should be released. In regard to the allegations 
that such notification efforts might treat individual employees differently creating an equal protection violation, we 
note only that, generally, this Court does not address a party's asserting vicariously the constitutional rights of others 
Gens v Cassidv School 2008 OK 5, m. 28, 177 P.3d 565; Barzellone v. Presley , 2005 OK 86, fn. 32, 126 P.3d 588; 
Forest Oil Corp. v. Corporation Comm'n, 1990 OK 58, 131, 807 P.2d 774. Furthermore, our determination that 
birth dates and employee identification numbers are not subject to release makes consideration of the constitutional 
argument unnecessary. 



8 



dates of all state employees. The Tulsa World filed a similar request on May 26, 
2010, also seeking release of employee identification numbers. The OPEA filed 
two petitions in district court on March 29 th and June 21st, respectively. The first 
filing named as defendant the OPM; and the second suit was filed against the OSF. 
A legislative staff member and other entities were allowed to intervene in the first 
suit and the trial court allowed an amicus filing. 6 When the two suits were 
consolidated, the Tulsa World was allowed to intervene. 

%6 From July through September, 2010, all parties filed for summary 
judgment. The trial court sustained the summary judgment motions of OPM and 
OSF in an order filed on September 21 st . It found that: employee identification 
numbers were not subject to disclosure by any state agency; the Attorney General 
correctly stated the law regarding the release of state employees' birth dates 
requiring a balancing test to determine if such a release amounted to an 
unwarranted invasion of personal privacy; and utilization of the balancing test did 
not violate the equal protection clause. The trial court also determined that the 
records of legislative staff are protected from release by 51 O.S. Supp. 2005 



6 Nancy Fellow, the legislative staffer, appeared/?^ se. The Oklahoma State Troopers Association and the 
Oklahoma Department of Public Safety appeared as intervening plaintiffs. CompSource Oklahoma filed an amicus 
brief. 



9 



§24A.3(2). 7 

f7 Appeals were filed in both causes in October of 2010. Shortly thereafter, 
we were asked to retain the causes and to stay the effectiveness of the trial court's 
order. On December 9 th , the motions to retain were granted. That same month, the 
motion to stay enforcement of the trial court's order was granted effective until 
further order of the Court. On January 1 1, 201 1, the causes were ordered stayed 
during the pendency of the appeal. 

PRELIMINARY CONSIDERATIONS 

f 8 Two preliminary issues which must be considered before we may 
determine the primary questions presented: whether the release of birth dates and 



Title 51 O.S. Supp. 2005 §24A.3 providing in pertinent part: 
"As used in this act: 

... 2. 'Public body' . . . does not mean judges, justices, the Council on Judicial Complaints, the 
Legislature, or legislators , . ." 

This exception is qualified to the extent that records are kept for the receipt and expenditure of any public funds. 
See, 51 O.S. 2001 §24A.4. Intervenor Nancy Pellow claims that, as a Senate staff member, she is entitled to the 
protection of the Open Records Act legislative exemption. Our determination that birth dates and employee 
identification numbers are not subject to release here makes determination whether all legislative staff employees 
records are exempt from release under §24A.3, this note, supra, unnecessary. Nevertheless, we note that the 
Attorney General has determined that, except when the document is created by a third-party public body or official, 
the Open Records Act does not require legislators to disclose documents in their possession created by third parties, 
AG Opin. 08- 1 9. Although we have not had occasion to determine whether the exemption for the Legislature and 
legislators extends to their staff, we have acknowledged the exemption and noted its application to judges and 
Justices, generally. Nichols v. Jackson. 2002 OK 65, 11(12), 55 P.3d 1044. Furthermore, in an Open Records 
Request to the Court directed at staff-produced documents, we determined that records of judges and Justices are 
specifically excluded from the requirements of the Open Meetings Act and that judicial privilege shields the internal 
decisional process of the Court and internal court documents prepared by court personnel Wallace v. Honorable 
Daman H. Cantrell. No. 307,300, Order of October 1, 2009 relying on Goetz v. Crosson, 41 F.3d 800, 805 (2" Cir. 
1994), cert, denied, 516 U.S. 821, 1 16 S.Ct. 80, 133 L.Ed.2d 39 (1995). 



10 



employee identification numbers constitutes a "clearly unwarranted invasion of 

personal privacy" within the meaning of 51 O.S. Supp. 2005 §24A.7(A)(2). The 

first is whether these matters may be included within the confines of the statutory 

language itself. Second, if they may fall within the confines of the statutory 

exemption, what test is employed to determine whether release is appropriate. 

f 9 1) Title 52 O.S. Supp. 2005 §24A.7(A)2 contains a non-exclusive 
list of examples of information, release of which, the Legislature 
considers to be a clearly unwarranted 
invasion of State employees' personal privacy. 

TflO The OPEA contends that the birth dates and employee identification 

numbers of state employees are exempt from disclosure pursuant to 51 O.S. Supp. 

2005 §24A.7(A)(2) 8 allowing public bodies to keep records confidential where 

disclosure would constitute a clearly unwarranted invasion of personal privacy. 

The publishers disagree, asserting that the only matters the Legislature considered 

as those which would invade a public employee's privacy are those specifically 

listed in the statute, i.e. employee evaluations, payroll deductions, employment 

applications submitted by unsuccessful job applicants, and school employees' 

transcripts from institutions of higher education, coupled with the per se 

exemptions of subsection D, 9 employees' home addresses, telephone numbers, and 

8 Title 51 O.S. Supp. 2005 §24A.7, see note 2, supra. 
9 TitIe 51 O.S. Supp. 2005 §24A.7(D), see note 2, supra. 

11 



social security numbers. 

HI 1 In determining whether a statute applies to a given set of facts, we focus 
on legislative intent 10 which controls statutory interpretation. 11 Intent is 
ascertained from the whole act in light of its general purpose and objective 12 
considering relevant provisions together to give full force and effect to each. 13 
The Court presumes that the Legislature expressed its intent and that it intended 
what is expressed 14 in statutory enactments and that it does not perform vain and 
useless acts in carrying out its legislative drafting responsibilities. 15 We employ 
rules of statutory construction only where the legislative intent cannot be 
ascertained from the statutory language. 16 

«P2 In subsection A(2) of title 51 O.S. Supp. 2005 §24A.7, the Legislature 



{Q Tyler v. Shelter Mut. Ins- Qo., 2008 OK 9, % 12, 184 P.3d 496; McClure v. ConocoPhiilips Co., 2006 OK 
42, % 12, 142 P.3d 390; Nealis v. Baird, 1999 OK 98, f55, 996 P.2d 438. 

1 ' Smicklas v. Spjtz, 1992 OK 145, 18, 846 P.2d 362; Clifton v. Clifton , 1990 OK 88, f7 f 801 P.2d 693; 
Fuller v. Odom, 1987 OK 64, P4, 741 P.2d 449. 



' 2 Tvler v. Shelter Mut. Ins. Co., see note 1 0, supra; McSorlev v. Hertz Corp,., 1 994 OK 1 20, ^6, 885 P.2d 
1343; Qglesby v. Liberty Mut . Ins. Co., 1992 OK 61, f8, 832 P.2d 834. 

13 Hill v. Board of Education, see note 15, infra: Hanev v. State, 1993 OK 41, |5, 850 P.2d 1087; Public 
Serv. Co. of Oklahoma v. State ex rel. Com. Comm'n, 1992 OK 153, 18, 842 P.2d 750. 



1 4 Minie v. Hudson, 1 997 OK 26, f 7, 934 P.2d 1 082; Fuller v. Odom, see note 1 1 , supra; Darnell v. 
Chrysler Corp ., 1984 OK 57, f5, 687 P.2d 132. 

15 See. Strong v. Laubach, 2004 OK 21, f 11, 89 P.3d 1066: Hill v. Board of Education , 1997 OK 107, 1997 
OK 111,112, 944 P.2d 930. 

l6 9JdahomaAss^ ME®MfeTmMmv-£&tfQkMmmGM, 1995 OK 62,^5, 901 P.2d 800, cert 
denied, 516 U.S. 1029, 116 S.Ct. 674, 133 L.Ed.2d 523 H995): Affiliated Met. Corp,, v. State of Oklahoma ex rel. 
Oklahoma Tax Comm'n, 1977 OK 1 83, 570 P.2d 335. 



12 



directed public bodies to keep personnel records confidential, disclosure of which 
"would constitute a clearly unwarranted invasion of personal privacy such as" 
employee evaluations, payroll deductions, employment applications of 
unsuccessful candidates, and transcripts from institutions of higher education of 
school employees. Subsection D of the same section provides that public bodies 
"shall keep confidential" home addresses, telephone numbers, and social security 
numbers of public servants. The examples given in subsection A(2) and the 
specifically enumerated items listed in subsection D axzper se prohibited from 
disclosure. 17 

f 13 When the Legislature sought to specifically enumerate items that it 
intended to be kept confidential in all instances, it used mandatory language 18 
providing that public bodies "shall keep confidential the home address, telephone 
numbers and social security numbers" of its employees. Nevertheless, its 
utilization of the phrase "such as" in a statutory provision is not a term of strict 
limitation. Rather, it is utilized to indicate that there are other matters 
intended to be included within the statutory limits which are not specifically 

17 Chicago Tribune Co. v. Board pfEducatipn of fee£l&&f Chicago, 332 Ill.App.3d 60, 265 IILDec. 910, 
773 N.E.2d 674 (2002), appeal denied, 201 I11.2d 562, 271 Ill.Dec. 923, 786 N.E.2d 181 (2002). 

38 The term "may" is ordinarily construed as permissive while "shall" is commonly considered to be 
mandatory MLC Mortgage Corp . v. Sun America Mortgage Co.. 2009 OK 37, fo. 17, 212 P.3d 1 199; See also, 
Osorev LLC v. Kellv-Moore Paint Co., Inc., 1999 OK 50, f 14, 984 P.2d 194;Sheav. Shea, 1975 OK 90, f 10, 537 
P.2d417. 

13 



enumerated by the legislative language. 19 The phrase indicates a descriptive, 
non-exclusive list of matters of the same or like kind. 20 

K14 Undoubtedly, the Legislature provided examples of information in 51 
O.S. Supp. 2005 §24A.7(A)(1), release of which it would consider to be a clearly 
unwarranted invasion of personal privacy. In utilizing the term "such as" 
preceding the examples, it left open for consideration whether other matters 
of like or similar import might also be withheld providing a general 
exemption when, as here, a pubic body asserts that the requested information 
constitutes a clearly unwarranted invasion of personal privacy. 21 Therefore, 
we determine that 52 O.S. Supp. 2005 §24A.7(A)(2) contains a non-exclusive list 
of examples of information, release of which the Legislature considers to be 
clearly unwarranted invasions of State employees' personal privacy. 

f 15 2) Where a claim is made that disclosure of information 
under 52 O.S. Supp. 2005 §24A.7(A)(2) would constitute 
a clearly unwarranted invasion of personnel privacy, application 
of a case-by-case balancing test is utilized 
to determine whether the information is subject to release. 

f 16 The OPEA and OSF advocate the adoption of a balancing test for 

19 Donovan v. Anheuser-Busch. Inc., 666 F.2d 315 (8 ,h Cir. 1981). 

2 °ln re MandeFs Will. 143 N.Y.S.2d 339 (1955); Erwin v. Steele, 228 S.W.2d 882 (Tex.Civ.App. 1950); 
Charles Behien Sons ' Co. v. Richetts , 30 Ohio App. 167, 6 Ohio Law Abs. 543, 164 N.E. 436 (1928). 

21 Chicago Tribune Co. v. Board of Education of She City of Chicago , see note 17, supra. 

14 



determination of whether birth dates and employee identification numbers are 
subject to release under the Open Records Act. Under such a test, the public body 
must weigh the employees' interest in non-disclosure against the public's interest 
in obtaining the information. 

HI 7 The publishers argue that application of a balancing test to determine 
whether a public employee's personal information outweighs the public's right to 
know is inappropriate. They contend that, if such a test is utilized, the news- 
gathering functions under the First Amendment would greatly overcome only a 
slight imposition on the personal privacy of public employees. The publishers 
point to a Court of Criminal Appeals' decision and to a Court of Civil Appeals' 
opinion providing that no balancing test may be utilized as support for their 
allegations. Those cases and the publishers' assertions are unconvincing. 

% 18 Two Oklahoma cases support the contentions that utilization of a 
balancing test to determine whether employee birth dates or identification numbers 
are subject to release under the Open Records Act is inappropriate. Nevertheless, 
at best, those decisions are persuasive only and do not bind our independent 
review of the issue. 

119 Nichols v. Jackson , 2001 OK CR 35, 38 P.3d 228 involved a petition 
for the sealing of records in a criminal proceeding. Although the cause was first 

15 



filed in this Court, exercising our superintending control, 22 we transferred the 
matter and certified the question to the Court of Criminal Appeals. As stated, the 
issue certified to the Criminal Court required that the threshold issue to be settled 
was whether the criminal defendant's request for wholesale closure of the 
proceedings or sealing of records was necessary to protect the defendant's right to 
a fair trial. 

% 20 The Criminal Court held that the First Amendment right of access by 
the press to non-confidential court records precluded wholesale closure of the 
proceedings or sealing of the records. In reaching this result, provisions of the 
Open Records Act were considered. Relying on a Court of Civil Appeals' case, 
State ex rel. Oklahoma State Bd. of Medical Licensure and Supervision v. 
Mi gliaccio . 1996 OK CIV APP 37, 917 P.2d 483, 23 the Criminal Court determined 



22 The Okia. Const, art. 7, §4 providing in pertinent part:- 

"The appellate jurisdiction of the Supreme Court shall be coextensive with the State and shall extend to all 
cases at law and in equity; except that the Court of Criminal Appeals shall have exclusive appellate 
jurisdiction in criminal cases until otherwise provided by statute and in the event there is any conflict as to 
jurisdiction, the Supreme Court shall determine which court has jurisdiction and such determination shall be 
final. The original jurisdiction of the Supreme Court shall extend to a general superintending control over 
all inferior courts and all Agencies, Commissions and Boards created by law " 

23 *n State ex rel. Oklahoma State Bd. of Medical Licensure and Supervision v. Migliaccio, 1 996 OK CIV 
APP 37, 917 P.2d 483 a physician was disciplined by the Board of Medical Licensure and Supervision, following 
convictions in relation to filing of fraudulent medical claims. After the convictions were reversed, the physician 
sought expungement or sealing of records related to the disciplinary action. The appellate court held that the Board 
had no authority to either expunge or seal the records documents its actions in the physician's case. In reaching its 
determination, the Court of Civil Appeals stated that the Open Records Act does not allow the court to balance the 
individual's interests in records remaining private against the public's interest in access to records. 



16 



that the Open Records Act contains no provision allowing a court to balance an 
individual's interest in having records remain private and the public's interest in 
having access to the records. 

1J21 In the same breath that the Court of Criminal Appeals indicated no 
balancing test would be allowed, it stated: 

The Legislature has determined by statute that the public's interest is 

greater, except where specific statutory exemption is given 

However, such statutory provisions are always subject to 
interpretation to ensure compliance with constitutionally 
guaranteed rights. [Citations omitted. Emphasis supplied.] 

Thereafter, in answering the question certified, the Criminal Court made it clear 

that it had, despite its pronouncement concerning Mi gliaccio , balanced Nichols' 

rights to counsel, due process, and fair trial against the public's right to know. 

The opinion provides in pertinent part: 

The issues of closure of hearings and the sealing or [sic] records is a 
question of law, which in each instance is driven by the facts and 
circumstances of the particular case. The issue cannot be answered in • 
a carte blanche approach and should be addressed on an ongoing 
basis based upon the current status of the proceedings. In Press- 
Enterprise Co. v. Superior Court of California for Riverside County, 
478 U.S. 1, 106 S.Ct 2735, 92 L.Ed.2d 1 (1986) and United States v. 
McVeigh, 918 F.Supp. 1452 (W.D.Okla. 1996), a hierarchy of rights 
is set forth flowing from our constitutions and statutory enactments. 
The right of access protected by the First Amendment to the United 
States Constitution is a qualified right. When that qualified right 
conflicts with the constitutional guarantees afforded to a person 
charged in a criminal proceeding, it is the rights of the individual 



17 



which must be protected. The cases relied upon in this opinion set 
out the analysis to be utilized to ensure the balancing of those 
rights, which will ensure a criminal defendant is afforded his 
constitutional rights to counsel, due process and fair trial. [Italics 
. in original. Emphasis supplied.] 

1(22 The Court of Criminal Appeals has exclusive appellate jurisdiction 
over criminal cases. 24 Nevertheless, unlike this Court, it has no general 
superintending power over the lower courts and no jurisdiction to review our 
decisions. 25 Its opinion regarding the Open Records Act relies on a Court of Civil 
Appeals' opinion with merely persuasive value; 26 and, the opinion itself appears 
internally inconsistent, decrying the application of a balancing test yet ultimately 
utilizing the same test to determine the cause. 27 

1)23 It is this Court's responsibility to apply a general analysis of the 
constitutional and statutory norms applicable here. 28 Therefore, we determine that 
Nichols is inapposite to our decision today and specifically overrule State ex rel. 



24 The Okla. Const, art. 7, §4, see note 22, supra; Movants to Quash Multicounty Grand Jury Subpoena v. 
Dixon , 2008 OK 36, f5, 184 P.3d 546; State v. Bievins . 1992 OK CR4, f2, 825 R2d 270. 

25 The Okla. Const, art, 7, §4, see note 22, supra; Movants to Quash Multicounty Grand Jury Subpoena v. 
Dixon , see note 24, supra. 

26 Opinions released for publication by order of the Court of Civil Appeals are persuasive only and lack 
precedential effect. Rule 1.200, Supreme Court Rules, 12 O.S. 2001, Ch. A5, App. 1; 20 O.S. 2001 §§30.5 and 
30.14. 

27 Holdings in cases released by the Court of Criminal Appeals are not binding upon this Court although the 
rules announced therein may be considered persuasive. One Chicago Coin's Play Boy Marble Board, No. 19771 v. 
State ex rel Adams. 1949 OK 251, f9, 212 P.2d 129. 

2S See, Movants to Quash Multicounty Grand Jury Subpoena v. Dixon, note 24, supra. 

18 



Oklahoma State Bd. of Medical Licensure and Supervision v. Migliaccio, 1996 
OK CIV APP 37, 917 P.2d 483, to the extent that it conflicts with this opinion. 

%24 The AG recommended public bodies utilize a balancing test weighing 
the public's right to know against the employee's right to privacy in determining 
whether public employees' birth dates should be released. In analyzing the weight 
to be given to the Attorney General's opinion, we note that, like opinions of the 
Court of Criminal Appeals and the Court of Appeals, the writings are considered 
as persuasive authority. Here, however, the Attorney General's analysis carries 
more weight in determining the issues before the Court. It does so because the 
Legislature has not acted since the opinion was promulgated. Undoubtedly, it did 
not do so because it understood that this Court considers the Legislature's silence 
as acquiescence or approval of the law as expounded in an Attorney General 
opinion. 29 Therefore, we presume that the Legislature agrees with the Attorney 
General that it may be necessary to balance the public's right to know against the 
employee's right to privacy when it is alleged that the information requested 
would constitute a clearly unwarranted invasion of personal privacy under 52 
O.S.Supp. 2005 §24A.7(A)(2). 



29 MmmlCowtoHaIiofFM)e& WestoHm^Cei^v. Sj^exre/. Oklahoma Human Rights 
Comm'n , 1978 OK 76, fl 1, 579 P.2d 1276; Terry, v. Edgin , 1977 OK 35, |9, 561 P.2d 60. 

19 



Tf25 The United States Supreme Court has recognized the privacy interest in 
keeping personal facts away from the public eye. It has also acknowledged that, in 
some instances, the duty to avoid unwarranted disclosures is rooted in the 
Constitution. 30 Even where an event is not wholly private, the Court accepts that 
an individual may have some interest in limiting disclosure or dissemination of the 
information. 31 

%L6 The Federal Freedom of Information Act (FOIA) contains almost 
identical language to Oklahoma's Open Records Act providing that "files the 
disclosure of which would constitute a clearly unwarranted invasion of personal 
privacy" may not be released for public scrutiny. In considering the federal act's 
language, the United States Supreme Court has determined that such 
statutory language requires the implementation of a balancing test where the 
individual's right to privacy is weighed against the public's right to know. 32 

1J27 A number of other federal and state courts considering statutory 
language similar to that found in 51 O.S. Supp. 2005 §24A.7(A)(2) and in the 
FOIA align themselves with the Supreme Court's reasoning. These courts 

30 United States Dept . of Justice v. Reporters Committee for Freedom of the Press . 489 U.S. 749, 1 09 S.Ct. 
1468, 1480, 103 L.Ed.2d 774 (1989); Whaiexi v. Roe, 429 U.S. 589, 97 S.Ct. 869, 872, 51 L.Ed.2d 64 (1977). 

3 United States Dept. of Justice v. Reporters Committee for Freedom of the Press, see note 30, supra; Hines 
v. Commonwealth of Kentucky , see note 5 1 , infra. 

32 Department of Air Force v. Rose. 425 U.S. 352, 96 S.Ct. 1592,48 L.Ed.2d 11 (1976). 

20 



recognize that once a protectable privacy interest is established, proper application 
of the Open Records Act requires a comparative weighing of the antagonistic 
interests — here, the privacy interest of the public servant versus the policy of 
openness for the public good. 33 These courts acknowledge that the interests at 
issue must be considered on a case-by-case basis to determine whether the public's 
right to know predominates over the public employee's privacy interest. Where a 
privacy interest is established and disclosure would not significantly serve the 
principal purpose of disclosure, i.e. ensuring public confidence in government by 
increasing the access of the public to government and to its decision-making 
processes, disclosure is inappropriate. 34 

f28 We find the analysis of the Supreme Court and other jurisdictions with 
statutory language similar to that found in 52 O.S. Supp. 2005 §24A.7(A)(2) 
persuasive. Therefore, we align ourselves with those courts and with the 
reasoning of the Attorney General and determine that where a claim is made that 



33 01iva v. United States , see note 36, infra; Texas Comptroller of Public Accounts v. Attorney General of 
Texas, see note 36, supra; Dam Tree, LLC v. Meek, see note 36, intra; Scottsdale Unified School District v. KPNX 
Broadcasting Co., 191 Ariz. 297, 955 P.2d 534 (1998); Kentucky Bd. of Examiners of Psychologists v. Courier- 
Journal & Louisville Times Co., 826 S.W,2d 324 (Ky. 1992); Versaci v. Superior Court, 127 Cal.App.4th 805, 26 
Cal.Rptr.3d 92 (2005), rehearing denied (2005), review denied (2005); Chicago Tnbune Co. v. Board of Educ. of 
the City of Chicago , see note 1 7, supra; Doe v. Registrar of Motor Vehicles , 26 Mass.App.Ct. 415, 528 N.E.2d 880; 
Mullin v. Detroit Police Dept ., 133 Mich.App. 46, 348 N.W.2d 708 (1984). See also, Graham v. Alabama State 
Employees Ass'n , note 3, supra [Rejected balancing test but instituted similar test based on "rule of reason." But 
see, Tacoma Public Library v. Woessner , note 37, infra; Capital City Press v. East Baton Rouge Parish Metropolitan 
Council. 96-1979, 696 So.2d 562 (La 1997). 

34 p a ta Tree LLC v. Meek, see note 36, infra; Valentine v. Personnel Cabinet, see note 36, infra. 



21 



disclosure of information under 52 O.S. Supp. 2005 §24A.7(2)(2) would constitute 
a clearly unwarranted invasion of personal privacy, application of a case-by-case 
balancing test should be utilized to determine whether personal information is 



subject to release. 

f 29 Under the facts presented, 
where significant privacy interests are at stake 
while the public's interest either in employee 
birth dates or employee identification numbers 
is minimal, release of such information 
"would constitute a clearly unwarranted invasion of 
personal privacy" under 51 O.S. Supp. 2004 §24A.7(A)(2). 

f30 The Supreme Court has held that information such as place of birth, 

date of birth, date of marriage, employment history, and comparable data are 

protected from disclosure as matters which constitute a clearly unwarranted 

invasion of personal privacy. 35 The vast majority of courts considering the issue 

of whether birth dates should be excluded from public disclosure under statutory 

language similar to that found in 51 O.S. Supp. 2005 §24A.7(A)(2) and in the 

FOIA align themselves with the Supreme Court's reasoning and hold that 

"disclosure would constitute a clearly unwarranted invasion of personal privacy.' 



35 United States Dept. of Justice v. Reporters Committee for Freedom of the Press, see note 30, supra; 
United States Dept . of State v. Washington Post Co.. 456 U.S. 595, 102 S.Ct. 1957, 72 L.Ed.2d 358 (1982). See 
also, Sherman v. United States Dept . of the Army, 244 F.3d 357 (5 lh Cir. 2001). 

3 6 Associated Press v. United States Dept. of Justice, see note 5 1 , infra; Morley v. United States Central 
Intelligence Agency, 699 F.Supp.2d 244 (D.C.C. 2010); Coleman v. Lappin, 680 F.Supp.2d 192 (D.C.C. 2010); 
Salas v. Office of Inspector General . 577 F.Supp.2d 105 (D.C.C. 2008); In Defense of Animals v. Natl Inst, of 



22 



%3 1 Similarly, employee identification numbers, when balanced against the 
public's right to know, have been determined to be information whose release 
would constitute a clearly unwarranted invasion of personal privacy. 37 Such 
information has been found to provide little, if any, knowledge to the public which 
would provide a better understanding of routine day-to-day governmental 
operations. 38 Publication of the numbers has been considered to be highly 
offensive, because the disclosure could lead to public scrutiny of individuals 



Health, 543 F Supp.2d 70 (D.C.C. 2008); Judicial Watch , Inc. v. Department of Justice, 361 U.S.App.D.C. 183,365 
F3TTl08 r2004Y Olivav. United States, 756 F.Supp. 105 (E.D.N. Y. 1991); Texas Comptroller pfPubhc Accounts 

v Attorney General of Texas, S.W. 3d , 2010 WL 4910163, rehearing denied (201 1); Data Tree, LLC v. 

Meek, 279 Kan. 445, 109 P.3d 1226 (2005); Cjyraer v. City of Cedar Rapids, 601 N.W.2d 42 (Iowa 1999); 
Scottsdale Unified School Dist. v. KFNX Broadcasting Co., see note 33, supra; Valentine v. Personnel Cabinet, 322 
S W 3d 505 (Ky.App. 20 1 0); Hearst Corp . v. State of New York, Office of State Comptroller, 24 Misc.3d 6 1 1 , 882 
N YS 2d 862 (2009); Graham v. Alabama State Employees As£n, see note 57, infra; Garden Grove Police Dept. v. 
Superior Court 89 Cal.App.4th 430, 1 07 Cal.Rptr.2d 642 (2001); Mullin v. Detroit Pohce Dept., see note 33, supra; 
Doev Registrar of Motor Vehicles , see note 33, supra. Seealso, De^tmentgf iMgtice v. Reporters Committee , 

489US 749 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989); Justice v. Fuddy, P-3d ,2011 WL 1338824 (Hawaii 

App.) [Citizen's strong desire to personally verify President's eligibility to hold office did not constitute "compelling 
circumstances affecting health or safety of any individual. j;Providence Journal Co- v. Kane, 577 A.2d 661 (R.I. 
1990); Annot, "What constitutes personal matters exempt from disclosure by invasion of privacy exemption under 
state freedom of information act?", 26 A.L.R.4th 666 (1983). 

37 United America Financial, Inc. v. Potter. 53 1 F.Supp.2d 29 (D.C.C. 2008); Judicial Watch, Inc. v. United 
States Dept . of Commerce, 337 F.Supp.2d 146 (D.C.C. 2004); Tacoma Public Library v. Woessner , 90 Wash.App. 
205 951 P.2d 357 (1998) [Modified on rehearing on other grounds.]; Small v. Injernaj RCTejme Sjsr^ 820 F.Supp. 
163'(D.N.J. 1992). S*« & j2rywa]j Work Preservation Fund, Inc. v. Department of Housing & Urban 

Development, 936 F.2d 1300 (D.C.Cir. 1991); Metropolitan Life Ins. Co. v. Usery, 426 F.Supp. 150 (D.C.C. 1976), 
cert denied, 431 U.S. 924, 97 S.Ct. 2198, 53 L.Ed.2d 238 (1977), aff'd, 736 F.2d 727 (1984); King County v. 
Sheehan IH, 1 14 Wash.App. 325, 57 P.3d 307 (2002); F. Komuves, "We've Got Your Number: An Overview of 
Legislation and Decisions to Control the Use of Social Security Numbers as Personal Identifiers," 1 6 J. Marshall J. 
Computer & Info. L. 529 (1998). But see, Sun-Sentinel Co. v. United States Dept. of Homeland Security , 43 1 
F.Supp.2d 1258 (S.D.Fla. 2006), aff'd, 489 F.3d 1 173 (1 1* Cir. 2007) [Employee identification numbers released 
for FEMA inspectors suspected of criminal activity. Factor of suspected activity sufficient to outweigh privacy 
interests.]. 

38 judicial Watch, Inc. y. United States Dept. of Commerce, see note 3 7, supra; Hale v. Department of 
justice, 973 F.2d 894 (10 th Cir. 1992). See also, S. Burgess, "Access to Federal Government Records Under FOIA," 
05-12 Immigr. Briefings 1 (Dec. 2005). 



23 



concerning information unrelated to any governmental operation while 
constituting impermissible invasions of privacy. 39 Furthermore, as has been 
argued here, public employees' identification numbers may provide unauthorized 
access to information contained on government computers. 40 Finally, utilization of 
employee identification numbers has been shown to provide additional insight into 
financial dealings leaving individuals subject to identity theft. 41 

f32 Since September 11, 2001, the ramifications of identity theft have 
proven much more grave than previously thought. Identity theft, a huge problem 
in financial fraud and theft cases, now has implications for national security. 42 
The growing problem of identity theft is facilitated when birth dates are combined 
with other personal information. 43 Simply combining the release of a person's age 
along with other factors may make the individual vulnerable to those targeting a 
certain age range for scams 44 With both a name and a birth date, one can obtain 

39 Kina County v. Sheehan III, see note 37, supra; Tacoma Public Library v. Woessner , see note 37, supra. 
4 Q King County v. Sheehan III, see note 37, supra. 

41 State v. Stearns, 1 96 Or. App. 272, 1 1 P.3d 8 1 1 (2004). See also, United America Financial, Inc. v. 
Potter, note 37, supra; State v. Sharma. 216 Ariz. 292, 165 P.3d 693 (2007) [Individual utilized "scrambled" 
employee identification number along with other information to open bank accounts, obtain credit cards, and 
contract for utility services.]. 

42 State v. Woodfall 120 Hawaii 387, 206 P.3d 841 (2009). 

43 See, Texas Comptroller of Public Accounts v. Attorney General note 36, supra; Doe v. Conway, 

S.W.3d , 2010 WL 4860373 (Ky.App. 2010). 

44 Doe v. Registrar of Motor Vehicles , see note 36, supra. • 

24 



information about: an individual's criminal record; arrest record (which may not 
include disposition of the charges); driving record; state of origin; political party 
affiliation; social security number; current and past addresses; civil litigation 
record; liens; property owned; credit history; financial accounts; and quite 
possibly, information concerning an individual's complete medical and military 
histories; and insurance and investment portfolio. 45 The release of a state 
employee's name along with an employee identification number may provide 
access to other exempt personal information. 46 These same numbers may provide 
unauthorized access to information contained on government computers. 47 
f33 This Court has acknowledged the confidential status of personal 
financial records. 48 The Oklahoma Legislature has recognized the rights of 
individual citizens to protection from the problems arising from identity theft. It 
has made it a felony for "any person to willfully and with fraudulent intent [sic] 
obtain the name, address, social security number, date of birth, place of business 
or employment" and other information with the intent to utilize the personal 



' Scottsdale Unified School Dist . v. KPNX Broadcasting Co., see note 36, supra. 
' Tacoma Public Library v. Woessner . see note 37, supra. 
King County v. Sheehan III, see note 37, supra. 

; See, Alva State Bank & Trust Co. v. Dayton. 1 988 OK 44, 755 P.2d 635. 

25 



identifying information for the individual's benefit. 

f 34 Although the publishers disclaim any intention of publishing the birth 
dates of State employees, they assert that providing the date of birth information is 
important to their ability to identify one state worker from another. This argument 
has been considered too "narrow and limited" on the public interest scale to tip the 
balance of interests in favor of disclosure. 50 Additionally, the fact that information 
may be available to the public in some form or from another source does not 
dissolve the individual's interest in controlling the dissemination of information 
regarding personal matters. 51 

1(35 Although state employees' privacy interests may be diminished 



Title21 O.S. Supp. 2007 §1533.1 providing in pertinent part: 

"A. It is unlawful for any person to willfully and with fraudulent intent [sic] obtain the name, address, 
social security number, date of birth, place of business or employment, debt, credit or account numbers, 
driver license number, or any other personal identifying information of another person, living or dead, with 
the intent to use, sell or allow any other person to use or sell such persona) identifying information to obtain 
or attempt to obtain money, credit, goods, property, or service in the name of the other person without the 
consent of the person. . 

E. Any person convicted of violating any provision of this section. shall be guilty of identify theft. Identity 
theft is a felony offense punishable by imprisonment in the custody of the Department of Corrections for a 
term of not less than one (1) year nor more than five (5) years, or a fine not to exceed One Hundred 
Thousand Dollars ($100,000.00), or by both such fine and imprisonment. Restitution to the victim may be 
ordered in addition to any criminal penalty imposed by the court " 

5 Civmer v. City of Cedar Rapids , see note 36, surpa; Hearst Corp. v. State , see note 36, supra. 

51 UnMSjateiP^ofp^^ 487, 114 S.Ct. 1006, 127 

L.Ed.2d 325 (1994); Associated Press v. United States Dept. of Justice, 549 F.3d 62 (2 nd Cir. 2008); Judicial Watch, 
Inc. v. Department of Justice, see note 36, supra; Tacoma Public Library v. Woessner , see note 37, supra; Scottsdate 
Unified School Dist v. KPNX Broadcasting Co., see note 33, supra. See also, Hines v. Commonwealth, 41 S.W.3d 
872 (Ky.App. 2001); Planned Parenthood Golden Gate v. Superior Court, 83 Cal.App.4th 347, 99 Cal.Rptr.2d 627, 
642 (2000). 



26 



somewhat by taking a position in an agency subject to public scrutiny, they do not 
surrender all privacy rights by accepting government employment. 52 However, it 
important to note that the policy of disclosure is purposed to serve the public 
interest and not to satisfy the public's curiosity. 53 Here, the information sought 
serves no valid public interest. When balanced against the invasion of privacy 
sought by the publishers to obtain public employees' dates of birth and employee 
identification numbers, the balance must tip in favor of privacy. There simply is 
no instance in which we can fathom how such information would advance the 
public's interest in assuring that the government is properly performing its 
function. Therefore, we align ourselves with the reasoning of the United States 
Supreme Court, the majority of jurisdictions considering the issues presented, and 
the Attorney General and determine that, when the balancing test is applied to the 
facts presented, release of birth dates and employee identification numbers of State 
employees "would constitute a clearly unwarranted invasion of personal privacy" 
under 52 O.S. Supp. 2005 §24A.&(A)(2). 

CONCLUSION 

|36 Openness in government is essential to the functioning of a democracy. 

5 2 Kimberlin v. Department of Justice, 139 F.3d 944, 949 (D.C.Cir. 1998), cert, denied, 525 U.S. 891, 1 19 
S.Ct. 210, 142 L.Ed.2d 173 (1998): Coleman v. Lappin , 680F.Supp.2d 192, 199 (2010). 

53 Valentine v, Personnel Cabinet , see note 36, supra. 

27 



The greatest threat to privacy comes from government in secret. In order to 
verify accountability, the public must have access to government files. 55 Such 
access permits checks against the arbitrary exercise of official power and secrecy 
in the political process. 56 It gives private citizens the ability to monitor the 
manner in which public officers discharge their public duties and ensures that such 
actions are carried on in an honest, efficient, faithful, and competent manner. 57 

%37 The purpose of openness in government is not fostered by disclosure of 
information about private citizens that is accumulated in various government files 
but reveals little or nothing about an agency's own conduct. 58 Rather, 
governmental agencies and the courts 59 have a special obligation to protect the 
public's interest in individual privacy by acknowledging that public records are 

54 California v. Greenwood 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30(1988). 
55 Data Tree , LLC v. Meek , see note 36, supra. 

5 6 C.B.S .. Inc. v. Block. 42 CaUd 646, 230 Cal.Rptr. 362, 725 P.2d 470 (1986). 

57 n™ham v Alabama State Employees Ass'n. 991 So.2d 710 (Ala.Civ.App. 2007). See also, State ex rel. 
Carrwright v. Oklahoma Industries Auth., 1981 OK 47, f 14, 629P.2d 1244. 

58 United States Dept . of Defense v. F.L.R.A ., see note 5 1 , supra. See also, Department of Afc Force v. 
Rose , see note 32, supra. 

59 While the United States Supreme Court has expressed uncertainty regarding the precise bounds of the 
constitutional "zone of privacy," its existence is firmly established. At least two kinds of constitutionally-protected 
interests have been acknowledged. One is the interest in avoiding disclosure of personal matters. The other is the 
interest in independence in making certain kinds of decisions. The first of these is commonly referred to as 
"informational privacy." It is this aspect of privacy which is at issue here. In re Crawford, 194 F.3d 954 (9 th Cir. 
1999), cert denied, 528 U.S. 1 189, 120 S.Ct. 1244, 146 L.Ed.2d 102 (2000); F. Chlapowski, "The Constitutional 
Protection of Informational Privacy, 71 B.U. L.Rev. 133 (1991). 



28 



being harvested for personal information about individuals, contributing to a surge 
in identity theft, consumer profiling, and the development of a stratified society 
where individuals are pigeonholed according to the electronic trail they leave of 
transactions that disclose personal details. 60 

f38 In enacting 51 O.S. Supp. 2005 §27A.7(A)(2), the Oklahoma 
Legislature sought to construct an exemption which would require a balancing of 
an individual's right of privacy against the preservation of the basic purpose of 
Oklahoma's Open Records Act. The device adopted to achieve that balance was 
the limited exemption where privacy was threatened for the clearly unwarranted 
invasion of personal privacy. 

f39 We determine that the legislative language utilized in 51 O.S. Supp. 
2005 §24A.7(A)(2) indicates the Legislature intended to provide a non-exclusive 
list of examples of information, release of which may amount to a clearly 
unwarranted invasion of State employees' personal privacy and that where a claim 
is made that disclosure would constitute a clearly unwarranted invasion of 
personal privacy within the meaning of the statute, application of a case-by-case 
balancing test is utilized to determine whether personal information is subject to 



m in re Crawford see note 59, supra; G. Barber, "Personal Information in Government Records: Protecting 
the Public Interest in Privacy," 25 St. Louis U. Pub. L.Rev. 63 (2006). 

29 



release. We determine that when the balancing test is applied to the facts 
presented, where significant privacy interests are at stake while the public's 
interest either in employee birth dates or employee identification numbers is 
minimal, release of birth dates and employee identification numbers of State 
employees "would constitute a clearly unwarranted invasion of personal privacy" 
under 52 O.S. Supp. 2005 §24A.7(A)(2). 61 

AFFIRMED. 

COLBERT, V.C.J., WATT, WINCHESTER, EDMONDSON, REIF, COMBS, 
GURICH, JJ. - CONCUR 

TAYLOR, C.J., KAUGER, J. - DISSENT 



Title 52 O.S. Supp. 2005 §24A.7(A)(2), see note 2, supra. Although we reference federal jurisprudence, 
our decisions with regard to the state law questions are based on Oklahoma law which provides bona fide, separate, 
adequate and independent grounds for our decision. Michigan v. Long, 463 U.S. 1032, 1 03 S.Ct. 3469, 77 L.Ed.2d 
1201 (1983). 

30